The Olson/Boies Same-Sex Marriage Lawsuit: Too Much, Too Soon?

The question no longer is whether the lawsuit should be brought, but whether it will succeed.
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Thurgood Marshall had an easier time of it. Back in the 1940s and 1950s, Marshall and other lawyers at the NAACP Legal Defense Fund kept a tight rein on litigation aimed at dismantling racial segregation.

As a ruling by a federal judge in San Francisco yesterday showed, it is much more difficult these days for gay rights lawyers to keep tight control of lawsuits aimed at challenging government policies that discriminate against LGBT people.

As is well known, two prominent lawyers with little experience litigating gay rights issues--Ted Olson and David Boies, former adversaries in Bush v. Gore--filed a complaint in federal court in May challenging the constitutionality of California's Proposition 8.

For more than fifteen years groups like the ACLU, Lambda, and the National Center for Lesbian Rights (NCLR) have pursued a careful and methodical legal strategy that has sought to challenge restrictions prohibiting same-sex marriage in a limited number of jurisdictions on state constitutional grounds. This strategy has been, on the whole, remarkably successful. In fact, almost no one could have credibly predicted fifteen years ago that by 2009 six states would legally recognize same-sex marriages.

The gay rights movement's lawyers, however, have been careful of not asking too much, too soon of the courts. There has been a widely shared view among movement lawyers, for example, that the time is not yet right to ask federal courts to require the recognition of same-sex marriage across the country by holding that it is impermissible under the federal constitution to prohibit same-sex couples from marrying. In the same way that Thurgood Marshall would have likely lost Brown v. Board of Education if he had brought the case a decade before he did, gay rights lawyers believe that it is too soon to ask the U.S. Supreme Court to require all 50 states to recognize same-sex marriage. To put it simply, there does not appear to be the five votes on the Court required for such an outcome.

This is why most movement lawyers have been nervous from the moment the Olson/Boies lawsuit was filed in May. And this is why in July, the ACLU, Lambda, and the NCLR filed a motion seeking to intervene in the case. If they were not able to prevent the lawsuit from being filed, at least perhaps they would be able to participate in it and bring to bear their extensive experience litigating gay rights issues.

But yesterday, Judge Vaughn Walker of the federal district court in San Francisco denied the motion to intervene, ruling that Olson and Boies could adequately represent the interests of those seeking to challenge the constitutionality of Proposition 8 without the direct involvement of the gay rights groups.

There is still a long way to go in this one. A trial has been scheduled to begin in January. Whatever the outcome of the trial, the case will undoubtedly be appealed to the U.S. Court of Appeals, and then to the U.S. Supreme Court. It will likely be another two years before the nation's highest court is put in the position of deciding whether to hear the case.

For better or for worse, the lawyers who have been leading the legal battles for same-sex marriage will be watching all of this from the sidelines, their role limited to the writing of amicus (or "friend of the court") briefs. Although there are many of us who believe that the time is not yet right for this kind of federal constitutional lawsuit, the question no longer is whether the lawsuit should be brought, but whether it will succeed. Mr. Olson and Mr. Boies seem confident that it will. I hope they are right. But if they are not, they will likely go back to their high-powered law practice, leaving it to the gay rights organizations to pick up the pieces.

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